So this reminds me of an amazing situation during a deposition for a case involving voice actor Vic Mignona suing some people because their tweets and calls[0] caused him to lose work. So a guy called Ron Toye is being questioned over some tweets and Ty Beard (the lawyer conducting the deposition) just needs to get him to authenticate that some tweets are his:
Ty Beard: Look at all these pages, are these all your tweets?
Ron Toye: I don't recall making them, but that's my twitter handle yeah
TB: Are those your tweets?
RT: It looks like it, yes
TB: Yes? Is that a "yes"?
RT: It looks like it, yes
TB: I need you to say yes or no [1]
RT: ... or it looks like it
So this goes on for pages, the frustrated lawyer (who appears to be pretty poorly equipped to handle the situation) being given the runaround by just A Guy. There is a really funny discussion of this - including more of the deposition transcript - in the ALAB podcast's episode "Weeb Wars Pt 2" @ https://soundcloud.com/alabpodcast/episode-5-weeb-wars-pt-2 (deposition chat starts 28 minutes in, lasts 10 minutes). It even escalates, it's great :D
edit: to be clear, I think the person being stupid in this scenario is Ty Beard, not Ron Toye :D
[0] - arguably Vic Mignona's own general creepiness caused this, but these guys tweeted about that
I didn't listen to the podcast, but let me play devil's advocate for a second. For most people, tweets are fire and forget, and they can't remember everything they've ever posted. If a lawyer hands me a binder with 38 pages of tweets, I don't know where he got them. If it turns out a tweet on page 15 was doctored, and I say "yes these tweets are mine", then I just confessed under oath to something I didn't do. In that position I would answer questions in good faith, but I would also never confirm anything under oath unless I was damn sure it was the truth.
I'm sure this attitude would piss off a lot of lawyers, but lucky for you I'm not a white collar criminal, so you don't need to worry about meeting me in a courtroom.
All the things that article describes as "evasiveness" are what I'd describe as taking into account the messiness of the world. I mean, I might remember being at a restaurant with people and deciding to go to a show with them. Did I actually go to the show? I don't know, maybe I changed my mind on the way if I have no memory of the show or maybe I did go.
A lot of the article seems about ways to bully people into making "obvious" conclusions, stating things definitely when they are not, in fact sure of their answers and so-forth. And a lot of tactics are about the common sense of language. "Surely you'd remember X if you in fact did it" "Come on, either the situation had X quality or it didn't" etc. In contrast to this intuition, I think there are quite a few studies on memory and language having some inherent fuzziness to them.
Edit: in defense of the parent article, it's writing in an assumed context of professionals operating according to standards. In this context, people have both an obligation and a series of reminders to be exact in their memory of events and the events themselves should be more cut-and-dried. The real problem is someone expects this standard of exactness to carry over to casual human activity (writing, tweeting or socializing).
Even longer articles/blogs/research notes/etc. I've probably written thousands of them. If someone asks me if I wrote one, especially one that I didn't have final editorial approval over, the best I could probably say in many cases is that I vaguely recall writing something like that and it seems to reflect what I believed to be true at the time.
Ditto for verbal communications. I had a call with a lawyer at a vendor once asking me about a conversation I had with a reporter. (Not a deposition.) As I recall :-), my answer was along the lines of I know the journalist in question and have spoken to them many times and I vaguely remember being briefed at some point by the $VENDOR in question on $TOPIC but I have no idea who I spoke with or exactly when it was.
Here's the fuller story: The Cuyahoga's Recorder's Office charged $2 per page... even when it was simply a CD full of documents. That literally meant they were charging over $200,000 for a single CD of publicly available documents. The companies that needed these documents were understandably frustrated. That's why they sued. The recorder's office spent $55,000 of taxpayer's money defending themselves... and they lost.
The person refusing to acknowledge what a photocopier is, was Lawrence Patterson. He was head of information technology for the recorder's office, and even after the loss of the case was still working for the county on a salary of $65,000(!).
The lawyer questioning him was David Marburger. He pointed out afterwards that if the recorder's office had just accepted the more reasonable sum of $50 per CD, which the companies suing the recorder's office had offered, they would have made $25,000 -- instead they lost $55,000.
Marburger has said of the video that the emotions were all wrong: "I actually wanted [Patterson] to keep up what I perceived as a charade. Once he chose the path that he took, I didn't want a straight answer; I wanted him to keep it going. That was why I kept pushing over the course of 10 pages of transcript. To me, the testimony became too good to be true. It was perfect."
He also said that Patterson wasn't the slightest bit intimidated in real life.
Marburger used the absurd testimony to win the case, and the court unanimously agreed that they only charge $1 per CD moving forward.
I loved that scene. It features the fantastic but tragically underused John Ennis, most famous for his work on Mr. Show.
I remember when it came out, I felt like the Verbatim series was really well done, but it was surprising coming from the NY Times since it was so outside their wheelhouse. It seems like they abandoned it pretty quickly but I wish someone more like Funny or Die would pick up the idea.
I worked in a place that had two very different machines with two very different functions that used the same colloquial name “Photocopy Machine” and “Photo Copy Machine”. I have to say, I would have been obstinate about which was being referred to in that case if disposed.
That's the thing, after all: the guy is obligated to give true answers, not answers that would be convenient for the lawyers. There's no requirement that you make their job easy.
An interesting style of questioning for adversarial situations. Engineers are usually taught to use very open questions (why/what/who/when/etc) so as to not inadvertently steer the situation to a predetermined conclusions. This is very useful for cooperative situations, such as a team trying to find the root case of some outage so that it can be fixed.
In more adversarial situations such as pitching your manager on a raise, I can see how using many short and closed questions will steer the conversation much more effectively by closing down options for the counterparty to evade. It's very similar to the "yes ladder" used in some sales courses.
> Much wisdom often goes with fewer words.” –Sophocles
I love that this quote sits in the middle of the first section of this lengthy article. The section that says to specifically use more questions rather than fewer (some of the questions are for some reason phrased as statements). The section that is followed by an intro that basically defined what an uncooperative witness is at least three times but in more or less the same words. The irony is so strong I don’t think I need to take my supplements today.
"Unfortunately, the probability exists that a witness may answer these questions with something other than an unqualified “yes”. The hedging, evasive answer avoids the truth ..."
Hmm, avoids the truth, or avoids the answer you wanted?
"The witness who “doesn’t remember” or “isn’t sure” about dates, times, distances, or amounts."
Witnesses are notoriously unreliable. It's possible these are valid, truthful answers.
Exactly. The lawyer/author is presenting themselves in the light of seeking the truth. Maybe they actually believe it themself, but it's not a unbiased view.
"... a curious investigator that's trying to maximize their own knowledge of the truth."
Do we actually have anything like this in the 'justice' system? Lawyers are on sides. Police only investigate to prove guilt, not innocence (most of the time). Judges are basically referees. Juries don't get to investigate, only view what the court allows them to (and society in general has a bias against defendants). In my experience, nobody is interested in the truth.
Remember that this is geared towards representatives of a corporation, not persons representing themselves. These kinds of answers are almost certainly in a record somewhere.
I don't see how this changes much. It's very possible they don't have those details recorded, or if they do they still don't remember them. Then they are just reading off of the notes. The credibly that is often given to notes is alarming. Sure, dated notes in combination with memory is good. But if there is no memory to go with them and no validation process, then it's possible there was a mistake in the notes, yet they treat them as truth.
A record someplace maybe. A record that I have? Often not.
Ask me when I first discussed $TOPIC with someone or when I was briefed about $TOPIC or when I talked to a reporter about $TOPIC, I may have a date-stamped note, scrawl in my paper calendar, or an entry in an electronic calendar (assuming I'm still with the same company). But I may also have a vague recollection which no amount of prodding is going to crystallize or just no memory at all.
This person is not saying every person who forgets something is evasive. They are specifically talking about people who are being evasive (IE the facts are known, this person just wants to argue about it).
There's a huge difference between someone saying "yeah, i got no idea", and passive aggressively doing the same constantly becuase they want to be cute.
This is not talking about the person who occasionally forgets something. This is talking about a deposition where everything is a struggle because the witness is being passive aggressive.
The difference is pretty obvious (in most cases) live.
I was on a Jury for a trial that lasted 2 weeks, dozen witnesses. I came away with the impression that there is what happened, what they saw, what they perceived, and what they remembered. And then memories change over time.
Doesn't help that most witnesses are ambushed by circumstances. They're muddling through life when something untoward came out of left field. And so weren't forming long term memories.
>"The witness who “doesn’t remember” or “isn’t sure” about dates, times, distances, or amounts."
That would be me. I honestly can't ever remember any date / phone number / time / etc without writing it down. FFS I can't even recall license plate of my car.
>"Q. How far apart were your truck and Mrs. Agan’s car apart the accident?
A. I don’t know.
... and it goes on and on"
Yes I do not remember the distance. I can tell that it is probably between 5 and 15 feet. There is no fucking evasion here. Learn to ask correct question instead.
>"Effective exhaustion is the use of simple follow-up questions like the following after each answer:
...
"Tell me more"
...
"
I am sorry Mr. Lawyer. I am not here to create stories possibly endangering sides without merit. Ask fucking particular questions.
Q. Okay, then could they have been more than 25 feet apart, say the length of this room?
A. Is this room 25 feet long?
Don't agree to something you have not verified.
Q. If someone showed you photos of the scene would that possibly allow you recollect something about seeing Mr. Smith’s car? (asking if reviewing a document might change recollection)
A. It might implant a false impression that I remember more than I do.
Alternatively,
A. I very much doubt it, but if you think there are pictures that will, show them to me.
If a lawyer took that bait, she might be setting herself up for an "if the glove doesn't fit" moment, where the witness denies that any evidence presented makes a difference to her recall.
The questions are intentionally leading to the conclusion the lawyer wants a jury to reach. It’s intended to be hostile. If you react angrily, that serves the lawyer’s purpose.
And lawyers wonder why they are considered lowerer than a subterranean snake's belly when they openly waste vast amounts of people's time to manipulatively build a sophistic self serving narrative....
It doesn't matter why you're doing it. Whether you're deliberately evasive or not, you're not stating facts that answer the question. The purpose of a deposition is to develop a record about the facts the witness can state in testimony. It's a correct question because it demands a specific factual answer.
> I am not here to create stories
Exactly, which is why your response to "tell me more" is to say there is no more to tell. The lawyer needs to know you're on the same page about not creating stories. That way if "more" suddenly comes up in trial, the judge or jury can fairly weigh why you are all of a sudden willing to create stories at trial.
>"you're not stating facts that answer the question"
Not my problem. I am not here do the guesswork and tell semi-facts that could be further twisted to advance someone's goal. Learn to ask proper questions. That is one of the things you get paid for.
"Can I just tell you anything I like, or is there something in particular that you'd like me to tell you?"
That's part of his boxing-in strategy, I think. As a juror, I think I'd be unimpressed by an examiner asking such an open non-question. As a witness, it would make me angry (which someone up-thread has noted would mean I've lost that hand).
Also, if I'm not sure, then I'm not going to testify under oath that I am sure. Asking me repeatedly is badgering, and it won't change my answer.
No, this is a shrewd defense against a witness saying in court "but the opposing lawyer didn't let me speak and only told me to answer their questions, that's why it's not in the deposition".
In general, in this setting, yes. The English (and thereby American) legal traditions assume a right "to every man's evidence" and depositions are taken under oath.
An actual perjury charge is extremely unlikely, but the judge the case is assigned to could hold a witness in contempt for persistently refusing to play ball. In reality, though, what the deposing side needs is to know what facts the witness will testify to, or alternatively, to be able to show that the witness can't be trusted. So if they can prove that the witness lied, it's likely sufficient for their purposes to just show that at trial and thereby discredit the witness.
It's not an absolute principle. It obviously depends on the country, but also on the type of trial (civil, criminal...), down to the particular type of issue being considered and the position of the witness in the dynamic.
by other questions that imply that
very simplified example:
have you drove your car from pub? don't remember
were you in a morning at 6 Random street? Yes
5 mins later...
Did you took a taxi? No sir, I came by car
Can anybody confirm that for you? No, I was driving alone
It would be probably more elaborate questions, but you get the idea
> The advantage of the "one fact – one question" technique is that when a witness "runs", i.e. they try a long non-responsive narrative; the question can be repeated easily again and again.
Readit News
Ty Beard: Look at all these pages, are these all your tweets?
Ron Toye: I don't recall making them, but that's my twitter handle yeah
TB: Are those your tweets?
RT: It looks like it, yes
TB: Yes? Is that a "yes"?
RT: It looks like it, yes
TB: I need you to say yes or no [1]
RT: ... or it looks like it
So this goes on for pages, the frustrated lawyer (who appears to be pretty poorly equipped to handle the situation) being given the runaround by just A Guy. There is a really funny discussion of this - including more of the deposition transcript - in the ALAB podcast's episode "Weeb Wars Pt 2" @ https://soundcloud.com/alabpodcast/episode-5-weeb-wars-pt-2 (deposition chat starts 28 minutes in, lasts 10 minutes). It even escalates, it's great :D
edit: to be clear, I think the person being stupid in this scenario is Ty Beard, not Ron Toye :D
[0] - arguably Vic Mignona's own general creepiness caused this, but these guys tweeted about that
[1] - he really doesn't
I'm sure this attitude would piss off a lot of lawyers, but lucky for you I'm not a white collar criminal, so you don't need to worry about meeting me in a courtroom.
All the things that article describes as "evasiveness" are what I'd describe as taking into account the messiness of the world. I mean, I might remember being at a restaurant with people and deciding to go to a show with them. Did I actually go to the show? I don't know, maybe I changed my mind on the way if I have no memory of the show or maybe I did go.
A lot of the article seems about ways to bully people into making "obvious" conclusions, stating things definitely when they are not, in fact sure of their answers and so-forth. And a lot of tactics are about the common sense of language. "Surely you'd remember X if you in fact did it" "Come on, either the situation had X quality or it didn't" etc. In contrast to this intuition, I think there are quite a few studies on memory and language having some inherent fuzziness to them.
Edit: in defense of the parent article, it's writing in an assumed context of professionals operating according to standards. In this context, people have both an obligation and a series of reminders to be exact in their memory of events and the events themselves should be more cut-and-dried. The real problem is someone expects this standard of exactness to carry over to casual human activity (writing, tweeting or socializing).
Ditto for verbal communications. I had a call with a lawyer at a vendor once asking me about a conversation I had with a reporter. (Not a deposition.) As I recall :-), my answer was along the lines of I know the journalist in question and have spoken to them many times and I vaguely remember being briefed at some point by the $VENDOR in question on $TOPIC but I have no idea who I spoke with or exactly when it was.
The New York Times did an amazing reenactment from transcripts of the legal deposition
https://youtu.be/PZbqAMEwtOE
The person refusing to acknowledge what a photocopier is, was Lawrence Patterson. He was head of information technology for the recorder's office, and even after the loss of the case was still working for the county on a salary of $65,000(!).
The lawyer questioning him was David Marburger. He pointed out afterwards that if the recorder's office had just accepted the more reasonable sum of $50 per CD, which the companies suing the recorder's office had offered, they would have made $25,000 -- instead they lost $55,000.
Marburger has said of the video that the emotions were all wrong: "I actually wanted [Patterson] to keep up what I perceived as a charade. Once he chose the path that he took, I didn't want a straight answer; I wanted him to keep it going. That was why I kept pushing over the course of 10 pages of transcript. To me, the testimony became too good to be true. It was perfect."
He also said that Patterson wasn't the slightest bit intimidated in real life.
Marburger used the absurd testimony to win the case, and the court unanimously agreed that they only charge $1 per CD moving forward.
-- thunderpeel2001I remember when it came out, I felt like the Verbatim series was really well done, but it was surprising coming from the NY Times since it was so outside their wheelhouse. It seems like they abandoned it pretty quickly but I wish someone more like Funny or Die would pick up the idea.
That's the thing, after all: the guy is obligated to give true answers, not answers that would be convenient for the lawyers. There's no requirement that you make their job easy.
In more adversarial situations such as pitching your manager on a raise, I can see how using many short and closed questions will steer the conversation much more effectively by closing down options for the counterparty to evade. It's very similar to the "yes ladder" used in some sales courses.
I love that this quote sits in the middle of the first section of this lengthy article. The section that says to specifically use more questions rather than fewer (some of the questions are for some reason phrased as statements). The section that is followed by an intro that basically defined what an uncooperative witness is at least three times but in more or less the same words. The irony is so strong I don’t think I need to take my supplements today.
Hmm, avoids the truth, or avoids the answer you wanted?
"The witness who “doesn’t remember” or “isn’t sure” about dates, times, distances, or amounts."
Witnesses are notoriously unreliable. It's possible these are valid, truthful answers.
"... a curious investigator that's trying to maximize their own knowledge of the truth."
Do we actually have anything like this in the 'justice' system? Lawyers are on sides. Police only investigate to prove guilt, not innocence (most of the time). Judges are basically referees. Juries don't get to investigate, only view what the court allows them to (and society in general has a bias against defendants). In my experience, nobody is interested in the truth.
Ask me when I first discussed $TOPIC with someone or when I was briefed about $TOPIC or when I talked to a reporter about $TOPIC, I may have a date-stamped note, scrawl in my paper calendar, or an entry in an electronic calendar (assuming I'm still with the same company). But I may also have a vague recollection which no amount of prodding is going to crystallize or just no memory at all.
There's a huge difference between someone saying "yeah, i got no idea", and passive aggressively doing the same constantly becuase they want to be cute.
This is not talking about the person who occasionally forgets something. This is talking about a deposition where everything is a struggle because the witness is being passive aggressive.
The difference is pretty obvious (in most cases) live.
Doesn't help that most witnesses are ambushed by circumstances. They're muddling through life when something untoward came out of left field. And so weren't forming long term memories.
That would be me. I honestly can't ever remember any date / phone number / time / etc without writing it down. FFS I can't even recall license plate of my car.
>"Q. How far apart were your truck and Mrs. Agan’s car apart the accident?
A. I don’t know.
... and it goes on and on"
Yes I do not remember the distance. I can tell that it is probably between 5 and 15 feet. There is no fucking evasion here. Learn to ask correct question instead.
>"Effective exhaustion is the use of simple follow-up questions like the following after each answer:
...
"Tell me more"
... "
I am sorry Mr. Lawyer. I am not here to create stories possibly endangering sides without merit. Ask fucking particular questions.
A. Is this room 25 feet long?
Don't agree to something you have not verified.
Q. If someone showed you photos of the scene would that possibly allow you recollect something about seeing Mr. Smith’s car? (asking if reviewing a document might change recollection)
A. It might implant a false impression that I remember more than I do.
Alternatively,
A. I very much doubt it, but if you think there are pictures that will, show them to me.
If a lawyer took that bait, she might be setting herself up for an "if the glove doesn't fit" moment, where the witness denies that any evidence presented makes a difference to her recall.
> I am not here to create stories
Exactly, which is why your response to "tell me more" is to say there is no more to tell. The lawyer needs to know you're on the same page about not creating stories. That way if "more" suddenly comes up in trial, the judge or jury can fairly weigh why you are all of a sudden willing to create stories at trial.
Not my problem. I am not here do the guesswork and tell semi-facts that could be further twisted to advance someone's goal. Learn to ask proper questions. That is one of the things you get paid for.
"Can I just tell you anything I like, or is there something in particular that you'd like me to tell you?"
That's part of his boxing-in strategy, I think. As a juror, I think I'd be unimpressed by an examiner asking such an open non-question. As a witness, it would make me angry (which someone up-thread has noted would mean I've lost that hand).
Also, if I'm not sure, then I'm not going to testify under oath that I am sure. Asking me repeatedly is badgering, and it won't change my answer.
For cross-examination (IE in the presence of a jury), you might ask it differently.
For deposition, you wouldn't.
Deposition is entered into evidence, but when it comes to a jury hearing them, they are usually excerpts.
An actual perjury charge is extremely unlikely, but the judge the case is assigned to could hold a witness in contempt for persistently refusing to play ball. In reality, though, what the deposing side needs is to know what facts the witness will testify to, or alternatively, to be able to show that the witness can't be trusted. So if they can prove that the witness lied, it's likely sufficient for their purposes to just show that at trial and thereby discredit the witness.
It would be probably more elaborate questions, but you get the idea
"Colonel Jessup, did you order the code red?"